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Download Report www.odfoundation.eu In protest against the illegal prosecution, the Ukrainian woman went on hunger strike Date of publication: 22 January, 2015 www.odfoundation.eu Contents: 1. Introduction ...................................................................................................................................... 3 2. The counsels received irrefutable evidence of Nadiya Savchenko’s innocence .............................. 3 3. Circumstances exempting Nadiya Savchenko from criminal responsibility under international law ........................................................................................................................................................ 4 3.1. Diplomatic immunity ..................................................................................................................... 4 3.2. Prisoner of war status ................................................................................................................... 5 4. Nadiya Savchenko declares a hunger strike ..................................................................................... 6 5. The Investigative Committee of the Russian Federation has deprived Nadiya Savchenko of the right to correspondence and continues to exert pressure on her family members ........................... 6 6. International reaction ...................................................................................................................... 7 7. Conclusions ....................................................................................................................................... 8 2 www.odfoundation.eu 1. Introduction Nadiya Savchenko, a Ukrainian soldier and a member of the Verkhovna Rada of Ukraine and one of the delegates of the Parliamentary Assembly of the Council of Europe from Ukraine, remains in custody in Russia facing trumped-up charges of involvement in the death of Russian journalists in Ukraine. Nadiya Savchenko’s counsels have provided the court and investigators with irrefutable evidence of her innocence as regards the alleged crime. The Ukrainian woman’s prosecution should cease immediately and she should be released from custody given the lack of elements of a crime in her actions, and according to international legal bases (POW status and a delegate of PACE), which grant her immunity from prosecution. The court, however, has steadily continued to support the prosecutor’s line. On 22 December, 2014, during one of the court sessions, despite all motions of the defence, Nadiya Savchenko’s arrest was extended until 13 February, 2015. In protest against the illegal inarceration, as well as falsification of charges, on 13 December, 2014, Nadiya Savchenko declared a hunger strike, which she has continued until now. A campaign in support of Nadiya Savchenko continued to gather pace globally. The international community demands her immediate release from the Russian authorities. On 26 January, 2015, on the opening day of the PACE winter session (one of the delegates of PACE in the quota of Ukraine is Nadiya Savchenko), her counsel, Mark Feygin, initiated a worldwide campaign to support the captured Ukrainian woman. 2. The counsels received irrefutable evidence of Nadiya Savchenko’s innocence In early December 2014, Nadiya Savchenko’s counsels received from the Security Service of Ukraine lists of communication activity [1] from her phone and the phones of the killed Russian journalists Igor Kornelyuk and Anton Voloshin. The information obtained allowed them to determine the approximate location of Nadiya Savchenko and the journalists on the first half of the day of 17 June, 2014. Let us remind ourselves that, according to the investigators, Nadiya Savchenko is accused of ordering the redirection of a mortar towards journalists Igor Kornelyuk and Anton Voloshin, which resulted in their fatal injuries. According to investigators, she allegedly gave the exact coordinates of the location of the journalists to mortar gunners between 11.00 a.m. and 1:00 p.m. on 17 June, 2014 and therefore, she was involved in bringing about their deaths. It is a well-known fact that in the morning of 17 June, 2014, Nadiya Savchenko was captured by pro-Russian militants, and for a long time, the time of her capture – whether it was before or after the death of journalists - remained uncertain. Analysis of her phone records indicates that at 10.40 a.m. she was already in the centre of Lugansk, where she was taken immediately following her capture. This information was also confirmed by eyewitnesses who reported that Nadiya was captured at approx. 10.30 a.m. At the same time, the lists of communication activity from the phones of journalists show that at 10.26 a.m., they were still in Lugansk. [2] According to the criminal case file, the journalists were killed at approx. 12.00 p.m. Thus, at the time that the journalists were killed, Savchenko had been a prisoner of the pro-Russian militants for over an hour and could not have committed the offence of which she is accused. 3 www.odfoundation.eu Russian lawyers emphasise that based solely on these data, the charges against Nadiya Savchenko should have been dropped, as the elements of a crime are clearly absent here. The information, received by the counsels from the SSU, was transferred by them to the Investigative Committee of the Russian Federation. On 26 December, 2014, it was included in the file of the criminal case against Nadiya Savchenko. [3] On 20 January, 2015, the counsels filed in the Investigative Committee of the Russian Federation a motion to dismiss the criminal case against Nadiya Savchenko in view of her alibi. 3. Circumstances exempting Nadiya Savchenko from criminal responsibility under international law 3.1. Diplomatic immunity On 26 October, 2014, Ukraine held early parliamentary elections, which resulted in the election of Nadiya Savchenko, heading the electoral list of the party ‘Batkivshchina’ (‘Fatherland’), for the Verkhovna Rada of Ukraine. On 19 November, 2014, the Central Election Commission registered Nadiya Savchenko as a Member of Parliament of Ukraine. She took the parliamentary oath in absentia by signing it in the presence of a Russian lawyer in the detention facility. [4] Her status as a member of parliament opened up the possibility of appointing Nadiya Savchenko as a candidate for the delegation to the Parliamentary Assembly of the Council of Ukraine. This decision was agreed upon by participants of the parliamentary coalition of the Verkhovna Rada of Ukraine. 25 December, 2014, the Verkhovna Rada of Ukraine officially elected Nadiya Savchenko as a member of the Permanent Delegation of Ukraine to PACE. An appeal of the Ukrainian Parliament to PACE calls on international institutions to intervene in the process of liberating Nadiya Savchenko and other citizens of Ukraine, held in Russian captivity. [5] At the next session of PACE, to be held from 26 to 30 January 2015, Nadiya Savchenko will be officially confirmed as a PACE delegate. According to international legal agreements, PACE members have diplomatic immunity. For example, Article 40 of the Statute of the Council of Europe states that members of the Parliamentary Assembly of states which have ratified the Statute of the Council of Europe shall be inviolable and immune from arrest and other legal procedures. [6] The Russian Federation ratified the law on accession to the Statute of the Council of Europe in 1996. Domestic legislation of the Russian Federation guarantees the inviolability of persons who enjoy this right in accordance with international legal standards. According to the Criminal Code (Article 11, section 4), diplomatic inviolability is granted to persons enjoying diplomatic immunity under Russia’s international treaties. [7] But, according to the Code of Criminal Procedure of the Russian Federation (Article 3, section 2), proceedings in respect of a person enjoying diplomatic immunity are carried out upon the consent of an international organisation in which the person participates. [8] The Constitution of the Russian Federation establishes the prevalence of international law over domestic law. Thus, following the receipt by Nadiya Savchenko of the official status of PACE delegate and obtainment of diplomatic immunity, the Russian Federation will not have the right to conduct a criminal case against the Ukrainian MP or hold her in custody. 4 www.odfoundation.eu On 12 January, 2015, Nadiya Savchenko’s defence filed a motion with the Head of the Investigative Committee of the Russian Federation, Alexander Bastrykin to release the arrested Ukrainian woman so that she could participate in the PACE session, the opening of which be held on 26 January, 2015. [9] The Investigative Committee did not respond to the request, and so, on 19 January, 2015, Nadiya Savchenko’s counsels filed a complaint with the Basmanny Court of Moscow over the inaction of the Investigative Committee in connection with their motion. [10] Under law, the court has to consider the complaint by 26 January, 2015. 3.2. Prisoner of war status Despite the existence of numerous pieces of evidence corroborating the fact that the Russian army are participating in a military conflict in the Donbas, Russia and Ukraine are not officially at war. Due to this fact, Russia does not recognise Nadiya Savchenko as prisoner of war. However, according to international legal standards, Nadiya Savchenko is indeed a prisoner of war. For example, Article 45 of the Additional Protocol to the Third Geneva Convention indicates that
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